The Washington Post is reporting that the decision not to hear any of the seven cases currently pending for review by the Supreme Court will allow lower-court decisions to strike down bans in Indiana, Wisconsin, Utah, Oklahoma and Virginia to stand. This will allow same-sex couples to begin to wed in those states as well as in other states with similar challenges in their circuit courts.
"The court’s decision came without explanation and puts off a decision about the constitutionality of gay marriage that would apply to all 50 states," writes the Post. "But it sent a clear signal that a majority of the court did not feel the need to overturn lower court decisions that found state prohibitions were unconstitutional."
Some court watchers weren't surprised, especially because a Supreme Court Justice recently hinted that this might happen.
"Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the controversy at this point, because there was no disagreement among the lower courts on that issue. Today her prediction proved true," wrote Amy Howe on Scotus Blog this morning. http://www.scotusblog.com/
Ever since the June 2013 Supreme Court decision that struck down part of the Defense of Marriage Act in U.S. vs. Windsor, cases brought before 42 federal and state courts have been decided 40 to 2 in favor of striking down constitutional bans. This is in spite of the fact that the high court did not touch on whether state bans were constitutional. Lower court judges have simply ruled that the reasoning in the opinion on the case warrants such a finding.
Today's decision does not bode well for supporters of traditional marriage even if a case with national implications does make it to the Supreme Court in the near future. As the Post points out, the Windsor decision was decided 5-4 with the Court's liberal wing joining swing-voter Anthony Kennedy. However, it only takes four members of the Court to grant a review of lower court decisions, which means none of the four dissenters in the conservative wing of the Court were willing to take up the issue at this time.
Because of the number of cases pending in lower courts at this time, the door may now be open to same-sex marriage in as many as 35 states.
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